The decision raises the interesting question of whether, post-Booker, the trial courts sentence in U.S. v. Cross, 289 F.3d 476 (7th Cir. 2002), which the court cited by way of analogy, would withstand scrutiny.
In Cross, the defendant was convicted of mail fraud, and while the court did not delineate his entire criminal history, it was apparently a long one.
Cross had 20 criminal history points, seven more than necessary to qualify for category VI. His guideline range was 77 to 96 months. Had the judge employed the standard methodology for upward departures under U.S.S.G. 4A1.3 add one offense level for every three points over 13 his range would, at most, have been 110-137 months.
However, the sentencing judge imposed the maximum three consecutive terms of 60 months each, for a total of 180. The court stated that, the guidelines notwithstanding, he would impose the maximum sentence, whatever it was: The only thing that guides me, Mr. Cross, in my consideration is to incapacitate you for as long as I can. You have cheated enough people for a long time and it is time you were told you cannot do it any more. And that, purely and simply, has no limit other than the statutory limitation. Cross, at 478-479.
The Seventh Circuit vacated the sentence, because the trial judge did not employ the proper methodology, but not without adding its own colorful view of Cross criminal history: Crosss criminal activities span 4 presidential administrations and some 15 baseball seasons. Children born in the era of Crosss earliest recorded cons are now getting dates for the prom. Id., at 478.
So, the question is, if the judge does employ the Cross methodology, linking the degree of the increase in sentence to the structure of the guidelines, and then goes beyond that, imposing even more time, what must the judge state to justify going beyond that range.
In such a case, the case at bar could be distinguished simply because Castro-Juarez history is just not that egregious. The offense for which he was convicted was being in the country after having been deported not the gravest offense. His prior convictions consist of two drug possession charges, one charge of giving false information to a police officer, two thefts (one of only a pair of shoes), three domestic violence charges, and a battery stemming from a bar brawl. In sum, he is a common serial misdemeanant, even if some of the charges are actually felonies.
Some language from the court in Castro-Juarez case also suggests that a sentence such as Cross received could now withstand scrutiny: All that is necessary now to sustain a sentence above the guideline range is an adequate statement of the judges reasons, consistent with section 3553(a), for thinking the sentence that he has selected is indeed appropriate for the particular defendant (cite omitted).
A finding by the judge that, whenever the defendant is ultimately released, he will immediately revert to criminal activity, would seem to render a maximum sentence reasonable, pursuant to this language.
However, the court later stated, Having identified the relevant factors, however, the judge did not single out any aspect except criminal history. These are significant concerns, but they overlap and, as far as we can tell on this record, are encompassed by the district courts explicit reference to the text of sec. 4A1.3.
This statement could be read to mean that, if the only factor that warrants a sentence higher than that which can be tied to the structure of the guidelines, is the same criminal history that already accounts for a sentence longer than the guidelines would prescribe, then such a sentence is per se unreasonable.
– David Ziemer
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David Ziemer can be reached by email.